Authorities as the decision cited them, with how this panel applied each one.
Lab. Code, §§ 5903, 5952(d); Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604; Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162
Decisions by the Appeals Board must be supported by substantial evidence, including medical opinions framed in terms of reasonable medical probability and based on adequate examination and history.
Applied to evaluate the sufficiency of Dr. Cole's medical opinions as substantial evidence.
From the decision · page 4It is well established that decisions by the Appeals Board must be supported by substantial
evidence. (Lab. Code, § 5903, 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d
274 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312 [35
Cal.Comp.Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627 [35
Cal.Comp.Cases 16].) To constitute substantial evidence "... a medical opinion must be framed
in terms of reasonable medical probability, it must not be speculative, it must be based on pertinent
facts and on an adequate examination and history, and it must set forth reasoning in support of its
conclusions." (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en
banc).) "Medical reports and opinions are not substantial evidence if they are known to be
erroneous, or if they are based on facts no longer germane, on inadequate medical histories and
examinations, or on incorrect legal theories. Medical opinion also fails to support the Board's
findings if it is based on surmise, speculation, conjecture or guess." (Hegglin v. Workmen's Comp.
Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93].)
Cal. Code Regs., tit. 8, § 31.5(a)
Administrative Director Rule 31.5(a) enumerates specific circumstances for replacement QME panels; lack of substantial evidence is not one of them.
Applied to reject replacement panel request based solely on insufficiency of medical evidence.
From the decision · page 4Administrative Director (AD) Rule 31.5(a) enumerates 16 circumstances under which a
party may request a replacement QME panel. (Cal. Code Regs., tit. 8, § 31.5(a).) Despite the
evidentiary requirement that decisions by the Appeals Board be supported by substantial evidence,
this is not one of the enumerated reasons for a replacement QME panel pursuant to Rule 31.5(a).
Consequently, Rule 31.5(a) does not provide authority for a replacement QME panel on the
grounds that the QME's reports are not substantial evidence.
Lab. Code, §§ 5701, 5906; McDuffie v. Los Angeles County Metropolitan Transit Authority (2002) 67 Cal.Comp.Cases 138; Cal. Code Regs., tit. 8, §§ 31.7(a), 31.7(b)(3)
The WCJ and Board have authority to develop the medical record if specific medical opinions are deficient, and may order additional QME panels in other specialties upon good cause.
Applied to allow further development of the record or additional QME panels with proper notice and opportunity to be heard.
From the decision · page 5The Appeals Board has the discretionary authority to develop the record when the medical
record is not substantial evidence to determine causation of a disputed body part. (See Lab. Code,
§ 5701, 5906; Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389, 394 [62
Cal.Comp.Cases 924]; see McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117
[63 Cal.Comp.Cases 261].) Accordingly, upon return of this matter to the trial level, the WCJ may
exercise her authority to develop the record if necessary to adjudicate the disputed issues between
the parties. In our en banc decision in McDuffie v. Los Angeles County Metropolitan Transit
Authority (2002) 67 Cal.Comp.Cases 138 (Appeals Board en banc), we stated that "[s]ections 5701
and 5906 authorize the WCJ and the Board to obtain additional evidence, including medical